From noted forensic scientist Dr. Henry C. Lee to the memorable “out-of-work hairdresser” Mona Lisa Vito, many a trial verdict has turned on the testimony of an expert witness.
Although the more popular examples come from criminal trials, civil trials present the same opportunity to present to a lay jury expert evidence that can decide key questions of liability and amount of damages. Mass tort litigation offers opportunities and challenges to present scientific evidence in an easily digestible way.
Here are several important considerations.
Expert Witness Preparation Generally
To begin, a refresher on the general way expert testimony comes before the court. All federal courts and most state courts require a written expert report, which informs the opposing counsel months in advance of trial information about your experts, including their names and current affiliations, their qualifications, and their opinions.
Following disclosure of the written report, most courts allow a pretrial deposition of the expert. There is an enormous difference between disclosing information in an expert report and preparing your expert witness for a deposition versus preparing your expert’s direct exam for a jury trial. The first two can be much more technical because only the lawyers and perhaps a special master (or, on rare occasions, a judge) will be involved.
Purposes of the expert report and deposition include fairly disclosing the opinions the expert intends to offer and determining if the expert witness is qualified in a particular area. But after it is clear your expert will testify at an actual trial, a lawyer must reconsider how to present this expertise and complex opinions into terminology that a lay jury will understand.
Connection With a Lay Jury
A lay jury often does not have expertise in very dense scientific topics, and mass tort trials can last for weeks or months. As a result, your themes need to be memorable and easily digestible.
Expert witnesses are often well-credentialed academics who hold Ph.Ds. and have authored multiple publications in their field. They sometimes forget they need to teach at a basic level to share this knowledge with juries. If your witness is a university faculty member, ask them to think of their testimony more like an introductory first-year college lecture, rather than an advanced seminar to graduate students.
Often you will work on these cases for years, so it can be easy to lose sight of the fact that not everyone is as immersed in these concepts as you are. Try delivering your presentation to someone in your office, such as a staff member or a lawyer who does not practice in your area, to see if they understand what you are saying or if the scientific terminology needs to be explained further.
Better yet, try to explain it to your first grader at home—if she cannot grasp the general ideas, refine it some more!
Tips on Trial Exhibits
In this multimedia generation where multitasking is a given, PowerPoints and visuals play a huge role in today’s trials. Simple graphics are critical; they must be honest, not objectionable, and compliant with the Rules of Evidence.
Juries often respond well to timelines, checklists, and colorful cartoons. Graphics should incorporate drawings and symbols while avoiding too many words—three to four words per slide may be all the jury can absorb. Entire industries have arisen around trial graphic providers. Make connections with these vendors well before the eve of trial to brainstorm about the ever-growing technologies available to bring your client’s story to life.
‘Storytelling and Stick Figures’
Storytelling is becoming a lost art, in part because fewer trials means fewer lawyers have the opportunity to practice the art. We live in a passive environment, where we are always accepting information from our smartphones, our headphones, etc.—even at the dinner table! You have to reorient your behavior to consider how best to turn receiving around and give information back.
The key to effective storytelling is simplicity, as the human mind can only absorb so much. Some of the best trial graphics involve “stick figure” like drawings and animations to convey in a simple manner the key themes of your client’s story. Oral argument and witness testimony can be supplemented by catchy slides in the background.
At the same time, do your best to engage more than one of the jury’s senses. For example:
- bring in the product and have the jury hold it;
- play a videotape with sounds of the event at issue;
- ask your expert witness to stand up and demonstrate physically the concept they are describing.
The wise mantra says “Watch one, Do one, Teach one”—by presenting expert testimony that engages multiple senses, engaged jury members may recreate what they saw during deliberations and fully immerse the group in your narrative.
Lawyers have a natural tendency to shoehorn every fact into a direct exam because they have been working on the case for years and cannot know which facts the jury will respond to the most.
Lawyers also sometimes strive to introduce all of their points into evidence in order to be prepared for future appeals. Unless a fact is in the trial record below, it cannot be considered upon appeal. Unfortunately, this approach is often at odds with the need to simplify and distill your message to the jury.
The Holy Grail is finding a balance between protecting the appellate record and simplifying the science into what a lay jury can reasonably absorb.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
David L. Ferrera chairs the Product Liability litigation practice group at the Boston law firm of Nutter McClennen & Fish LLP. Fortune 500 medical device and pharmaceutical companies rely on Ferrera’s expertise and experience in presenting to lay juries and courts such complex medical science fields as orthopaedics, biomechanics, biomaterials, epidemiology, and pathology.